Injunction granted to allow inmate to receive methadone treatment

By Michael P. NortonState House News Service

Tuesday

Nov 27, 2018 at 1:07 PMNov 27, 2018 at 3:26 PM

In a closely watched case involving addiction treatment for prisoners, a federal judge on Monday granted a preliminary injunction that requires Essex County officials to provide a soon-to-be-incarcerated Ipswich man with access to physician-prescribed methadone treatment.

In her ruling on Monday, U.S. District Court Judge Denise Casper said that in weighing Geoffrey Pesce's request for relief, the court considered the likelihood that his case would succeed and whether relief was in the public interest. The judge concluded that Pesce "will be irreparably harmed if denied methadone treatment while incarcerated."

Pesce faces a minimum mandatory 60-day sentence for driving with a suspended license stemming from an incident in which he was pulled over while driving to his treatment program in July 2018. The infraction constituted a parole violation based on a previous charge of operating a vehicle under the influence of drugs in March 2016, prior to his ongoing and so far successful recovery.

He could be sentenced to jail at his Dec. 3 probation violation hearing in Lynn, or at a Jan. 14, 2019 appearance in Ipswich District Court where he is due to enter a guilty plea in connection with the suspended license charge.

The American Civil Liberties Union of Massachusetts and Goodwin Procter LLP filed the lawsuit in September, and ACLU affiliates have filed similar suits in Maine and Washington.

"The Court acknowledges that prison officials must prioritize legitimate security concerns in determining whether to introduce opioids to incarcerated populations," Casper wrote. "The Court also accords substantial deference to the professional judgement of prison administrators. With respect to this plaintiff and based on this particular record, however, the Court concludes that the balance of harms between the parties tips in Pesce's favor and the public interest is better served by ensuring Pesce receives the medically necessary treatment that will ensure he remains in active recovery."

While asserting that Essex County corrections officials are correct in saying they have "well regarded" treatment programs and "have identified legitimate, but generalized, safety and security reasons for prohibiting the use of opioids in their facilities," the court wrote Monday that the defendants "have not explained why they cannot safely and securely administer prescription methadone in liquid form to Pesce under the supervision of medical staff, especially given that this is a common practice in institutions across the United States and in two facilities in Massachusetts."

Pesce, 32, contends with opioid use disorder, overdosing at least six times and on multiple occasions requiring Narcan administration from paramedics to save his life, according to the case. His addiction caused him to lose his job, surrender custody of his son and "rendered him effectively homeless." Pesce has enrolled in at least four detox programs and taken buprenorphine and naltrexone, but none of the efforts succeeded in helping him maintain sobriety.

However, with a daily liquid dose of methadone prescribed by Dr. Shorta Yuasa under a Lahey Behavioral Services treatment program in Danvers, he has been in recovery since December 2016, has not had a positive drug screening, is working as a machinist, contributes financially to his family and is able to spend time with his son. Yuasa considers medication-assisted treatment (MAT) involving FDA-approved pharmaceuticals, in combination with counseling, behavioral therapy and other interventions, the "standard of care for treatment of opioid use disorders," according to Casper's ruling.

"In Dr. Yuasa's experience, 'there are some people for whom buprenorphine and naltrexone simply do not work, and [Pesce's] history suggests that he is one of those people," the judge wrote in her ruling. She added, "According to Dr. Yuasa, without methadone treatment Pesce will no longer be in remission from active addiction and his tolerance for opioids will diminish significantly. Dr. Yuasa has treated numerous patients who have relapsed, overdosed and died after being denied access to MAT during incarceration."

In anticipation of forced withdrawal upon incarceration, Pesce reduced his methadone dosage from 120 milligrams per day to 20 milligrams per day and became sick, anxious, unmotivated, fatigued and depressed, according to court records. Casper wrote that Dr. Yuasa "believes that denying Pesce 'medically necessary' methadone treatment will place him at high risk of overdose and death upon his release" from the jail in Middleton.

The plaintiffs in the lawsuit against Sheriff Kevin Coppinger and Essex County House of Correction Superintendent Aaron Eastman in Middleton are claiming violations of the Eighth Amendment that prohibits cruel and unusual punishment and a violation of Pesce's rights under the Americans with Disabilities Act.

In her ruling, the judge wrote that the Middleton jail, like the majority of Massachusetts correctional facilities, "is committed to maintaining a drug-free environment" and "expressly prohibits opioids like suboxone and methadone." The jail requires incarcerated individuals to undergo forced withdrawal under medical supervision, followed by substance abuse therapy, educational programming, re-entry services and after-care treatment upon release.

In her ruling, Casper wrote that opioid use disorder claims the lives of more than 100 people a day in the United States, said opioid-related deaths have surpassed the national average in Massachusetts, and wrote that Essex County, where Pesce lives, had the second highest number of opioid-related deaths of any county in Massachusetts in 2013. She said the opioid-related death rate in Massachusetts is 120 times higher for people released from jails and prisons.

She wrote that Pesce is "likely to succeed" with his claims of federal disabilities law and Eighth Amendment violations.

"Absent medical or individualized security considerations underlying the decision to deny access to medically necessary treatment, Defendants' policy as applied to Pesce is either 'arbitrary or capricious - as to imply that it was pretext for some discriminatory motive' or 'discriminatory on its face,' " the judge wrote.

In a brief filed in the case, the Massachusetts Medical Society, which represents doctors, supported a preliminary injunction. Society attorneys asserted that researchers have found that treatment programs must be individually tailored to be effective, and said a one-size-fits-all forced withdrawal program "will result in needless episodes of relapse, overdose and – yes – death."

A law signed in August by Gov. Charlie Baker will bring medication-assisted treatment to new institutions around the state, introducing it to Department of Correction prisoners, offering it to lower-level offenders in five counties, and mandating that emergency rooms and involuntary commitment facilities can provide it. Medication-assisted treatment can include methadone, which helps stave off the effects of withdrawal, and Vivitrol, which helps prevent relapse.

"For the houses of correction there will be five pilots for continuing treatment, for people who come in with a valid prescription or under medical care," Sen. Cindy Friedman, the Senate chairwoman of the Committee on Mental Health, Substance Use and Prevention, said when the bill was agreed upon.

The pilot program will be offered by the sheriffs in Hampden, Hampshire, Franklin, Middlesex and Norfolk counties, according to Friedman, and must be implemented by Sept. 1, 2019.

"Sheriffs really came forward on this, this is something that is really important to us," Middlesex Sheriff Peter Koutoujian, who worked with Friedman and Rep. Denise Garlick on the medically-assisted treatment provisions, told the News Service this summer. "This is not a mandate on us. Five sheriffs stepped forward and said, 'we want to do this and how can we do this?' And I know there are other sheriffs who want to join this down the line."

Under the law, the Department of Correction will create a program of medication-assisted treatment for incoming prisoners at Cedar Junction as well as evaluation and treatment before their release, according to Friedman. The law also mandates that detainees and prisoners at the Massachusetts alcohol and substance abuse center, the women's correctional facility at Framingham and the South Middlesex correctional center who were receiving medication-assisted treatment can continue that course of therapy while behind bars unless it is deemed no longer medically necessary.